Ohio Supreme Court case

I've been very busy lately getting ready for my Ohio Supreme Court oral argument, regarding whether the county board of developmental disability has the authority to intervene in a guardianship. While this may not sound like the most interesting case to you, it was very interesting to me. Here is a summary of the case from the Ohio Supreme Court website:

http://www.supremecourt.ohio.gov/PIO/oralArguments/09/1202/1202.asp

Here is the video of the oral argument:

http://www.ohiochannel.org/media_archives/supreme_court/media.cfm?file_id=123257&

Comments welcomed.

Shared Parenting - Not just about the time split - Basic factors to be considered.

Often parents come to me filled with questions about shared parenting and, frequently, I find that their idea of shared parenting is to have a 50/50 split of time with the children. While this is the common idea of what shared parenting is, it is not the only way to have shared parenting.

Shared parenting (in Ohio) is basically an agreement between the parents to write their own rules for how parenting time (often referred to as visitation) will be handled, but it can include so much more, including agreements on how to deal with the most fundamental decisions that go into raising a child. There is an Ohio statute that outlines the factors to be considered in developing a shared parenting plan. It is found in R.C. 3109.04. Click here for a link to that statute: http://codes.ohio.gov/orc/3109.04 It is a fairly lengthy statute, and can be difficult to walk through, so I am going to highlight the relevant portions here.

Shared parenting is based on a plan that the parents propose. It can be a mutually agreed plan, or each party can propose a plan. Ultimately, the Court must approve the plan as being the the best interests of the child or children. The Court can also determine that shared parenting is not appropriate. The best part of shared parenting is that the parents get to set the rules for their children and not the Court. Usually, the parents are in the best position to know what is best for their children.

The best interests of the children is the standard for any allocation of parental rights and responsibilities, and these are all spelled out in the same statute. As you review these, scroll down and you will find the additional factors that are considered in shared parenting plans. If you feel that shared parenting is appropriate for your particular situation, there are many ways to approach this. If both parents can work together, they can formulate a plan, considering matters such as the child's schooling, religious upbringing and medical issues, and then have this reviewed by an attorney to put in proper format for the Court. If you cannot agree, you can still have your attorney propose a shared parenting plan, which can be adopted or modified by the Court, if appropriate. Be sure to review when shared parenting may not be appropriate and keep in mind that the Court is charged with the responsibility of determining what is in the child's best interests, regardless of what the agreement of the parties is. Also keep in mind that each separate Court may have its own rules or its own procedure when it comes to what is acceptable or not in a shared parenting plan. Now you know that shared parenting is much more than just a 50/50 split of time, and may not even include a 50/50 split of time. It is a plan for trying to meet the best interests of the child as a team, and when it works out, it can be a wonderful thing.

(F)(1) In determining the best interest of a child pursuant to
this section, whether on an original decree allocating parental rights and
responsibilities for the care of children or a modification of a decree
allocating those rights and responsibilities, the court shall consider all
relevant factors, including, but not limited to:

(a) The wishes of the child's parents regarding the child's care;

(b) If the court has interviewed the child in chambers pursuant to
division (B) of this section regarding the child's wishes and concerns as to the
allocation of parental rights and responsibilities concerning the child, the
wishes and concerns of the child, as expressed to the court;

(c) The child's interaction and interrelationship with the child's
parents, siblings, and any other person who may significantly affect the child's
best interest;

(d) The child's adjustment to the child's home, school, and community;

(e) The mental and physical health of all persons involved in the situation;

(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;

(g) Whether either parent has failed to make all child support payments,
including all arrearages, that are required of that parent pursuant to a child
support order under which that parent is an obligor;

(h) Whether either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any criminal offense
involving any act that resulted in a child being an abused child or a neglected
child; whether either parent, in a case in which a child has been adjudicated an
abused child or a neglected child, previously has been determined to be the
perpetrator of the abusive or neglectful act that is the basis of an
adjudication; whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to a violation of
section 2919.25 of the Revised Code or a sexually oriented offense involving a
victim who at the time of the commission of the offense was a member of the
family or household that is the subject of the current proceeding; whether
either parent or any member of the household of either parent previously has
been convicted of or pleaded guilty to any offense involving a victim who at the
time of the commission of the offense was a member of the family or household
that is the subject of the current proceeding and caused physical harm to the
victim in the commission of the offense; and whether there is reason to believe
that either parent has acted in a manner resulting in a child being an abused
child or a neglected child;

(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court;

(j) Whether either parent has established a residence, or is planning to establish a
residence, ouside this state.

(2) In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to, the factors
enumerated in division (F)(1) of this section, the factors enumerated in section
3119.23 of the Revised Code, and all of the following factors:

(a) The ability of the parents to cooperate and make decisions jointly,
with respect to the children;
(b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;
(e) The recommendation of the guardian ad litem of the child, if the child has a
guardian ad litem.

(3) When allocating parental rights and responsibilities for the care of children, the court shall not give preference to a parent because of that parent's financial status or condition.

Recent Ohio Case Law Update

Here are some recent Ohio cases involving family law issues. This is being provided as a service to you, and you are cautioned to consult with an attorney prior to applying these cases to your particular situation, as there may be several other factors that would have to be considered in analyzing your particular situation, including other Ohio cases that are not listed here.

(Clicking on case name will take you to Casemaker link and you must have a password to access that. Clicking on the link will take you to the publicly available link.)

w Tabatabai v. Tabatabai, 2009-Ohio-3139 (9^th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2009/2009-ohio-3139.pdf

Trial court's award of a civil protection order against plaintiff's husband, entered on Form 10.01-I or other form approved by the Supreme Court of Ohio and signed by a magistrate and a judge, is a final appealable order under R.C. 3113.31(G); this decision overrules Mills. In awarding a civil protection order against victim's husband, trial court did not err since it conducted an independent review of the magistrate's findings that husband threatened to kill victim, that he was violent and that he had a number of guns.

w Curington v. Moon, 2009-Ohio-3013 (2nd District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3013.pdf

Trial court's grant of civil stalking protection order was proper since R.C. 2903.211(A)(1) is not void for vagueness because statute contains a "knowingly" scienter requirement. Trial court’s grant of civil stalking protection order was proper where defendant's failure to provide hearing transcript triggered presumption of regularity in trial court's proceedings and there was no plain error; fact that municipal court had issued no-contact order as part of defendant's conviction of telephone harassment did not require its being afforded jurisdictional priority, since criminal prosecutions for menacing by stalking and civil stalking protection orders are not mutually exclusive remedies, and actions that may have been subject of prior convictions may be used to prove menacing by stalking for civil protection order, R.C. 2903.211(D)(1).

w Amlin v. Amlin, 2009-Ohio-3010 (2nd District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3010.pdf

In modification of dissolution child support determination, reduction of obligor’s income was properly denied, despite obligor’s claimed expenditures for rental properties that resulted in a loss, since obligor produced no receipts or expense vouchers showing actual cash expenditures that were ordinary and necessary, sole evidence was an income tax return, purposes of Internal Revenue Code and child support guidelines are vastly different and trial court was not required to unquestionably accept all expenses deducted in previous tax returns.

In modification of dissolution child support determination, trial court did not abuse its discretion in imputing income of $20,800 to obligee; trial court considered statutory factors, and obligee had 19 years experience and income in family business that was not likely obtainable elsewhere, had limited education and was currently employed at $9.50 per hour.

w Saylor v. Saylor, 2009-Ohio-3109 (5th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2009/2009-ohio-3109.pdf

In divorce action child support determination, trial court abused its discretion in using health insurance costs of much higher than the amount that wife testified to and that was stipulated to by the parties; it was not error for the court to equally apportion child daycare expense since their payment by wife's parents was not guaranteed in the future.

w Sinclair v. Sinclair , 2009-Ohio-3106 (4th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2009/2009-ohio-3106.pdf

Trial court abused its discretion in improperly limiting duration of civil protection order to one year, reasoning that divorce proceeding automatically alleviated need; trial court erred in concluding divorce decree removed threat of domestic violence. Protection order is an additional remedy, R.C. 3113.31(G).

w Gartrell v. Gartrell, 181 Ohio App.3d 311, 2009-Ohio-1042 (5th District)

LinK: http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2009/2009-ohio-1042.pdf

In divorce action, trial court's rescission of prenuptial agreement was proper on grounds that agreement was void as against public policy by encouraging divorce or profiteering by divorce, Gross; parties entered prenuptial agreement that provided a significant sum to wife for a marriage of very short duration, and thus the terms of the agreement encourage divorce or profiteering by divorce. In divorce, trial court's rescission of prenuptial agreement was improperly based on grounds that agreement was merely negligently prepared where neither husband-attorney nor his counsel read agreement before execution, that constituted more than ordinary negligence; husband had practiced law for 20 years, faxed back changes to first draft and signed without further review, which constituted gross negligence.

w Rodgers v. Rodgers, 2009-Ohio-3059 (8th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2009/2009-ohio-3059.pdf

In ex-wife’s Civ.R. 60(B)(5) postdecree motion to divide marital asset, namely ex-husband’s pension, trial court did not abuse its discretion in denying the motion since motion was not filed for more than 27 years after the divorce and property settlement where she does not argue that he hid this asset from her or committed fraud in some way, but that the pension was “undisclosed” from the court, not her; a party may not circumvent the one-year limitation applied to Civ.R. 60(B)(1), (2) or (3) by seeking to vacate a judgment under Civ.R. 60(B)(5) when the ground is duplicative of a ground subject to the time limitation, and the record reveals no reason why ex-wife or her counsel could not have discovered the pension at the time of the original proceeding or any valid reason for the 27-year delay. No evidentiary hearing was required where ex-wife did not allege operative facts that would entitle her to relief under Civ.R. 60(B)(5) since she did not give a reason in her affidavit for waiting 27 years before requesting the relief.

w Hesseling v. Hesseling, 2009-Ohio-3116 (4th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2009/2009-ohio-3116.pdf

In divorce action, award of spousal support to wife was too financially burdensome on husband, where spousal support, child support and other financial obligations imposed by trial court consumed more than 75 percent of his pretax income since husband would be unable to pay the support without significant economic hardship.

w Nemeth v. Nemeth, 2009-Ohio-3144 (11th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2009/2009-ohio-3144.pdf

In divorce action, wife's motion for leave to file mandamus action is denied; wife's argument is without merit that, despite being declared a vexatious litigator, she should be allowed to bring this action to challenge the propriety of certain judgments rendered in the underlying divorce case. Wife has not satisfied the standard to be granted leave to proceed under R.C. 2323.52(F)(2); there is already a final judgment in case, wife has already appealed it and she had an adequate remedy at law, so she could not state a viable claim for mandamus.

w Underhill v. Underhill, 181 Ohio App.3d 298, 2009-Ohio-907 (2nd District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-907.pdf

In marriage dissolution postdecree proceedings, trial court erred in concluding that husband’s failure to object to magistrate’s decision determining liability only as to property settlement but not determining amount to be paid, later divested trial court of subject matter jurisdiction to consider objections once all of the issues had been resolved; requiring objections to decisions that are interlocutory in nature does not promote judicial efficiency, and absence of an objection did not divest trial court of subject matter jurisdiction to consider objections once all of the issues had been resolved.

w Algren v. Algren, 2009-Ohio-3009 (2nd District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3009.pdf

In divorce action in which son claimed ownership of closely held corporate stock, wherein wife filed declaratory judgment action to determine whether son had any interest in corporation, trial court erred in granting summary judgment for wife; existence and transfer of certificates are not required as a matter of law to prove gift of corporate shares by husband to their son since a certificate only represents a share and it is not required in order to prove ownership. However, there is a fact issue concerning number of shares son owned where husband filed gift tax returns as to the shares but some returns were unsigned, there was a stock sale restriction document stating that son and husband were sole shareholders that was witnessed by wife, corporate income tax returns indicated husband's transfer to son and there were share certificates in son's name. In divorce action in which son claimed ownership of closely held corporate stock, wherein wife filed declaratory judgment action to determine whether son had any interest in corporation, trial court did not err in finding that the restriction was binding on son, husband and company, despite claimed failure of consideration for restricted stock sales agreement; agreement has marginal effect since it is evidence only of son's ownership, agreement would have evidentiary force even if not legally binding, trial court would not be constrained by it in division of marital property since restriction applies only to voluntary transfers and not to transfers by operation of law and it was supported by consideration, as set forth in its recitals.

Social Media and Lawyers - my perspective

I am officially a big fan of all the new social media. I twitter, I am on facebook, myspace, linkedin, jdsupra, justia and an assortment of other places. Obviously I have this blog and my blog on fibro, and I try to be everywhere. Many lawyers who talk to me about this complain that it is just too much to do, and they are already too busy. I agree that it takes work, but once you have set yourself up, I think that it makes so many things much easier.

For example, on Facebook I have been able to easily reconnect with people I have not seen in over 30 years. And it is so pain-free. I can quickly scan what is going on in their lives. I can also keep in touch with more recent acquaintances, professional and otherwise. I just have to remember that what ever I put out there is out there for the whole world to see. I also have to remember that my opposing counsel or my opposing party is likely to be reading some of these things.

Of course, you can spend hours looking for people on Facebook, too. That can be a lot of fun and very rewarding, but you have to make sure it does not cut into your work time. This is true of anybody, including lawyers.

When I served on the school board, I remember a school board member asking why do we need to have so much technology in the schools for our kids, when it used to be that a pencil and paper were adequate. Surprisingly, that was only eight years ago. Look at how things have exploded. Paper and pencil - who needs them? I have diddlebug on my Centro, and those notes are saved forever on my Centro and on my computer. I can do Sudoku puzzles, take notes in court, keep track of my billable time, read major newspapers, get a weather report, get a tweet about local traffic conditions and all in the "Palm" of my hand, and all without paper or pencil.

However, social media does open up a new area of concern. It is more public than you can even imagine. There are people I run into on the street that I recognize from one of these social mediums, and they look familiar, but I can't quite place them. Then I realize that I followed a twitter link to their web page and learned all about them, all without meeting them. Or there are Judges who are following me on Twitter - better not insult any of their colleagues, right? (Not typically my style anyway, but something to keep in mind.) And Facebook becomes a mixed bag, when you have clients following you as well as old friends from high school who just want to keep reminding you of those embarassing things you did before you were even old enough to drive.

That is why you need to take the time to understand how the medium works. You can put controls on who sees what, but you need to pay attention and not just skip through the "fine print" on the websites. Learn to adjust your settings. Learn to rethink the settings as time goes by. Find software that can help you make your participating more in tune with your time schedule. Learn to make it work for you.

Anyway, I am loving the social media explosion and I love being toward the forefront, although I think everyone is going to catch up with me real soon. Just like anything, make sure you understand what it can do for you and what you can do with it. Use technology, don't let it use you.

That being said, I better get back to my 300 emails so that I don't miss anything important.

Trying to develop a less expensive divorce

In these tough economic times, almost every call from a prospective client starts with - what will you charge me to do a ______?   That is a difficult question for a lawyer, because each case presents a unique set of facts.  Have I ever had anyone tell me that the parties have agreed to everything, and they really did?  Yes, once or twice in twenty-eight years of practice.  Generally, there is some issue, and it is usually just because they didn't think of it.  They did not know that they could split the retirement account or that, at least in Ohio, you have to consider the Social Security Benefits as part of the overall property division.  They did not know that a shared parenting plan has to spell out so many things that they had not even talked about, like whether the parents agree to pay for college, or when do the children switch for Christmas Eve?  Or Fourth of July fireworks?  Not that these are insurmountable, but sometimes you get surprised by these issues, as does the client, and all of the sudden it is not such a simple divorce.  This is particularly true when both parties just assumed something and that assumption turns out to be incorrect (I assumed you would pay for it, it was your idea, after all.)

Well, I find that one area which takes up a lot of time, but does not need to be done by me, is the fact gathering part.  I mean not only getting together all of the bank statements and bills, but also thinking things through about the children, or where you will live, or what to do with the house since the children want to live there, but you are not sure whether you can afford it.  So I have spent a considerable number of hours developing an extensive workbook that I give to my clients and I let them be the fact gatherers and the fact organizers.  Organizing the paperwork so that it is meaningful to a lawyer can be a real time saver.  Which translates to a real money saver.  When a client puts a pile of bills or bank accounts on the desk in front of me, I still need to go through them to determine if the client thinks the bills are all legitimate, if any of the assets are separate property and how the client thinks these things should be divided.  Those are the kinds of facts that take time.

So what I have developed and what I am working with is a comprehensive workbook (and I mean comprehensive) that asks critical questions along with seeking paperwork from my client.  I am constantly retooling this idea, and I am now investigating providing the workbook in a folder along with other materials, such as books that I might recommend or a list of social service agencies that can help.  If my client wants to save money and is willing to spend what could be days to complete this workbook, then I am happy to receive a completed and well organized workbook with all of the paperwork that I need in order to properly advise and advocate for the client.  Any ideas or suggestions for improvement are always welcomed.

This is just an idea for a new way to do business in this new economy.  While I am not willing to freely share the workbook itself, since I consider it to be proprietary, particularly given all of the long hours I have put into it, I am happy to share the idea of it. 

Well back to actually practicing law.  My brother always says that he hopes someday after all of the practicing, I am able to actually do it.

How is Spousal Support determined in Ohio, anyway?

Spousal support, or alimony, is often the most frustrating issue for clients.  While child support is determined in Ohio by going to a chart or computer program, spousal support is based on many different factors.  By the way, the child support calculation seems easy by going to the chart, but then there is the opportunity to have deviations (up or down) so that it better fits your situation.  However, more on that in another post!

So what are these factors.  They are found in 3105.18, which can be found at http://codes.ohio.gov/orc/3105.18.  I will list them in here:

(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code;

(b) The relative earning abilities of the parties;

(c) The ages and the physical, mental, and emotional conditions of the parties;

(d) The retirement benefits of the parties;

(e) The duration of the marriage;

(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;

(g) The standard of living of the parties established during the marriage;

(h) The relative extent of education of the parties;

(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;

(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party’s contribution to the acquisition of a professional degree of the other party;

(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;

(l) The tax consequences, for each party, of an award of spousal support;

(m) The lost income production capacity of either party that resulted from that party’s marital responsibilities;

(n) Any other factor that the court expressly finds to be relevant and equitable.

As you can see, with the catchall at the end, almost anything can be a factor in determining spousal support.  In addition, some courts have rules of thumb although not official rules governing the amount and the duration.  Many people worry about the amount, but there is also a need to consider the duration and whether the support itself will be modifiable at a future time.  For that reason, it is probably necessary to consult with an attorney regarding your particular circumstances.

In addition, it should be noted that in Ohio there are attempts to set up a formula similar to the child support formula.  Whether the result of that is fair or workable will need to be determined later.  However at this time, these are the factors so when consulting with an attorney, keep these factors in mind so that you can share whatever relevant information you might have to make sure that your voice is clearly heard in the divorce process.

If you are interested in consulting with me, please feel free to call me a 614-564-6500.  The initial consultation is free!

Ohio Putative Father Registry

http://jfs.ohio.gov/pfr/

There it is.  Here it is again:  http://jfs.ohio.gov/pfr   This is the website that can give you information on how to register as a putative father.  And why should you do this?  If you are a man, and you know that someone is pregnant with your child (or at least suspect that you are the father), you need to register.  And you need to do it right away.  If you are registered before 30 days after the birth of the child, you will be notified if the mother attempts to have the child adopted.  Adoption is a form of permanently terminating the father's rights to that child.  In addition to registering, you must provide support to the mother and child in order for your consent to be required.  There are many other legal steps that need to be followed.  Therefore, if you are not married to the mother you might want to consult with a lawyer to make sure that you are following the legal steps necessary so that the child cannot be adopted without notice to you or without your consent.  There is a very limited window of opportunity, and I would urge anyone in this situation to register.  If you ultimately agree with the adoption (after you meet the prospective parents, for example), then you can always consent.  But if you don't register, you may never know.  So, if you know someone is pregnant with your child, register, and seek the advice of counsel so that you take all steps necessary to protect your future relationship with that child.

Books on Divorce, Even Some for the Kids!

Clients are always interested in finding out more and ask me to recommend books to them. I think that it is the uncertainty of the divorce outcome that makes them thirst for more knowledge in order to try to make the outcome more predictable. Unfortunately, the only way to have a predictable outcome is for the parties to come to agreement on all of the terms of the divorce. In that regard, education is very helpful. These are some books that clients have read and told me they would recommend to others, so I thought I would share them here. As usual, this is not a substitute for legal advice in your particular situation. For that, you need to consult with a family law lawyer.

What Every Woman Should Know About Divorce and Custody, by Gayle Rosenwalk Smith, J.D. and Sally Abrahams (Pub: Perigee) - Men should read this too! Has good explanations of situations (don't take out the bad news on your lawyer, use the energy to gather information needed to fight or your lawyer may deviate from the script because, if she is good, she will be able to read the courtroom). Very practical advice that will help you communicate better with your lawyer and maybe even help reduce your fees. Also gives guidance on whether you should represent yourself and how to hire a lawyer.

What About The Kids? Raising Your Children Before, During, and After Divorce by Judith S. Wallerstein and Sandra Blakeslee (Pub: Hyperion) Gives general information, but also breaks it down by age. Talks about resolutions to various issues, even gives help regarding stepparents and blending families after the divorce. Can help you flesh out issues involving your children which may help lead you to working things out with the other parent in the best interests of the child. (Hint: This can help you both avoid protracted litigation.)

Divorce For Dummies by John Ventura and Mary Reed (Pub: For Dummies) Yes, it is just like the Volkswagen for Dummies book I used in Law School to save money on my oil changes (what a mess I made, though). This book in particular was highly recommended to me by a client who brought it to every appointment and court hearing and regularly would way to me, "Wow, that's just what they said in this book!" I have not read this book but in general it has received good reviews, including good customer reviews. Does not have specific state by state requirements, but in the state I practice, you would almost need county by county information!

There are also some books for the children to help explain divorce to them. Some of my favorites are:

It's Not Your Fault, Koko Bear: A Read-Together Book for Parents and Young Children During Divorce by Vicki Lansky

Dinosaurs Divorce by Marc Brown (the same author of the Arthur series)

Two Homes by Claire Masurel and Kady MacDonald Denton, Illustrator

I Don't Want to Talk About It byJeanie Franz Ransom and Kathryn Kunz Finney, Illustrator

There are many others out there that probably deserve to be mentioned, but this is all the time I have for now. Back to lawyering!

Using Therapists and other professionals

In many divorce cases, therapists can come into play, particularly where children are involved. (Reminder: I am an Ohio lawyer giving you general information. For legal advice in your particular situation, please contact a family law attorney.)



Therapists can play many roles. It is important to remember that the therapist role is limited to the way the therapist is employed, and everyone needs to clearly understand that from the beginning. If the therapist is a pre-existing therapist who is actually treating someone, whether the child or the parent, the therapist is limited to that role and cannot start treating other people or making custody recommendations. However, a treating therapist can testify about the treatment progress and any issues that pertain to that particular patient. This is where is gets very tricky, and each therapist has to decide how to proceed under their own ethics rules. For example, in Ohio is it clear that a therapist treating a child cannot make a custody recommendation. That must be done by a neutral party, usually a forensic custody evaluator. However, a child's treating therapist might be able to testify that the child has exhibited an unusually high amount of anxiety when speaking about that one relative who just got out of prison. This could be used by the lawyer to lead the Court to issue orders limiting the contact with that person. See? It is very tricky.



There are also therapists who can be family therapists, just to help the family learn how to function in its new configuration. Yes, even though the parents are divorced, this is still a family. Sometimes these can be very difficult situations, and the individuals involved may need their own therapists as well.



Therapists can also serve to help mediate and resolve disputes, sometimes more effectively and efficiently than the Court can. You can also employ the services of a mediator if that is appropriate.



Finally, there is the therapist who is actually the forensic custody evaluator. Typically, this person will administer a series of psychological tests to both parents, spend a considerable amount of time privately with each parent to discuss the issues involving the children, observe the children interacting with each parent. This is an expensive and time consuming process, but sometimes it is what is ultimately needed.

So, when you decide to involve a therapist in your divorce case, keep in mind the limitations, but also remember that therapists can often resolve issues that courts are just not as effective at resolving.

For more information, feel free to call me at 614-564-6500 or email me at pamela.makowski@gmail.com. Also, don't forget to check my website at www.MakowskiLaw.com.

Prenupt: a great way to start a great relationship

Everyone had heard about prenuptial agreements, but usually because people are in the middle of a divorce and fighting over it. However, a prenuptial can be an wonderful way to start your life together. (Reminder: I am an Ohio lawyer giving you general information. You should seek the advice of an attorney for your particular situation.)

The first problem is how to start the dialogue for a prenuptial agreement with your future spouse. No one wants to talk about what we will do if we get divorced, because getting divorced is the last thing you are thinking about while picking out wedding cake and wedding favors. (However, if the stress of this makes you think of running, that is understandable.) However, a prenuptial agreement is a way to make sure that you will be fair to the person you love even if the marriage thing doesn't work. One suggestion for bringing it up is to initially bring up the idea of prenuptial agreements (I heard that so-and-so got a prenuptial agreement; what do you think of that?) Maybe your fiance is also thinking about a prenuptial agreement and hasn't had the nerve to bring it up.

It is important to remember that a prenuptial agreement is a two way street: it is designed to protect your assets and your fiance's assets. You could probably identify some items of your fiance's that should be protected as well, such as a savings account or retirement account. A prenuptial agreement is a mutual agreement so that you enter the marriage with a firm understanding about where you are and maybe even where you want to be.

The dialogue for a prenuptial should include identifying each others assets and even talking about what the plans are for them. If, for example, your fiance is planning to sell a premarital asset such as a house, you can talk about whether that is going to be maintained as separate property or if you plan to consolidate assets to acquire a new house together. That might even lead to conversations about expectations regarding children, how to raise the children, financial plans (especially your philosophies about saving and spending money). If you are planning to get married, you should be able to discuss these intimate things with each other openly, honestly and lovingly. While many of these items are not typically identified in a prenuptial agreement (although I have seen some where they are), it is still great to have this discussion.

Once you have had the discussion, it is important that you retain counsel. You each should get different counsel, but the two of you should have a pretty good idea of how you want the prenuptial set up. This will save you time and money. One lawyer can prepare the prenuptial for you and the other can just review it for your fiance. You can even agree to split the costs if you want. Considering the time that can be involved in arguing over separate property if there is a divorce, and considering that you should be sharing this financial information with each other prior to getting married anyway, the cost of doing a prenuptial agreement is really minimal.

When you go to the lawyer, have an outline of the agreement ready to show the lawyer. Sometimes the lawyer may raise issues you haven't thought of. A lawyer can also explain how to deal with things that are ongoing, such as the 401(k) that you have been investing in and plan to continue to invest in. As always, come to the lawyer with a list of questions that the two of you have. Have your fiance go to a different lawyer to establish a relationship, but decide between the two of you which lawyer will actually write the agreement and which will review it for you.

For more information, or if you have any questions, please feel free to contact me at 614-564-6500 or pamela.makowski@gmail.com. Also feel free to check out my website: http://www.makowskilaw.com/.

Practical tips if contemplating divorce/dissolution

Many people who show up in my office don't know where to start when contemplating a divorce. As a lawyer, I see a divorce as divided into three primary categories, maybe just two: children's issues, property division, ongoing spousal support. These categories are considered to be independent of each other, but in real life they all play into each other. For example, if there is not enough money (property division or support) then how can I afford to send my child to college?

The easiest issue is usually the property division. Anything that is marital property is usually divided. (This is Ohio law, and you need to seek specific legal advice for your situation, but this general information is provided to help guide you.) There can be issues of financial misconduct (hiding assets, spending money on a paramour, voluntarily reducing income and assets in contemplation of the divorce so the other spouse doesn't get them) and there can be issues about separate property. Usually inheritances, gifts given to one party in particular (e.g. birthday gift) and similar things are separate. The biggest issue is identifying all of the assets. Before coming to a lawyer, it is best to get together copies of all statements of any accounts or investments, along with copies of the titles to any vehicles, boats, trailers and the like. Make a master list of everything you own. Usually you can just say household goods for most of the things, but if you own an unusually expensive item you might want to list that separately. Sometimes, just the making of the list can help you figure out how to divide things. And don't worry about dividing that pension which you don't think you can touch. If you need to divide it, the court can issue what is called a QDRO (Qualified Domestic Relations Order), which will minimize the tax consequences of dividing the account. You probably need a lawyer to do the QDRO.

If there are no children, determining spousal support can be the most difficult issue. Generally, during the course of a marriage, under Ohio law, the income that is derived, regardless of who earned it, is considered marital. This can be a very emotional issue, especially when one spouse feels that the other spouse did nothing and deserves nothing. However, for those who are willing to compromise and work toward a resolution, you need to understand that when there is a disparity in income and there has been a long term marriage, it is likely that there will be an award of spousal support. While Ohio law does not currently have a formula for determining spousal support, most good family law attorneys can help you with the analysis to determine what would be a fair amount and length of time for spousal support. You will need to bring in proof of income both for you and your spouse. Prior tax returns are good, but recent pay stubs should also be included. For people in business for themselves, it gets trickier, so bank account statements showing deposits for the past year can be helpful.

Children's issues can either be very easy because the parents have figured out who gets the kids when, child support is determined by a formula, and the parents are working together for the benefit of the children. Look at my earlier blog on children's issues for resources to help in this area. However, if the parties don't agree, this could be the most difficult part of the case, and in some cases I have seen people spend all of the property down to fight over custody. There are guardians ad litem, forensic custody evaluators, mediators and a variety of other experts, that might be used in a custody case. There can be ongoing disputes about visitation and custody, or even the amount of support, who is paying for school, who gets Christmas Eve, how the summer is divided, and the list goes on and on. I have seen some couples fight until the children are adults. Sometimes the fighting is just necessary for the sake of the children, but understand that the Court, which looks at evidence, will ultimately rule. That is why you should gather together anything that helps show the Court why you should have custody. School reports, photographs, police reports (if applicable), names, addresses and phone numbers of people who could be witnesses for you. All of these things should be gathered and copied before even filing the divorce, so that you are prepared.

Finally, make a list of you important questions. How will I live while the divorce is pending? (There are temporary orders and your attorney can explain that to you.) What do I do with my old car that needs major repairs right now and my spouse has told me I am not allowed to spend the money on it? (The attorney can guide you so that you are not exposing yourself to financial misconduct by getting the repairs or buying a new car.)

Armed with your property list, you tax returns and pay stubs, the school reports and list of questions, you are now ready to have a very productive meeting with your counsel.

And most of us foolishly don't charge for that initial half hour (me included!) For more information, just call me at 614-564-6500 or email me at pamela.makowski@gmail.com. Also, if you didn't get there from here, check out my website at www.MakowskiLaw.com.

Good luck!

High Tech comes to Solo Practice

I have been keeping really busy with work, and trying to balance it with all of the new technology stuff I've added. I am twittering, facebooking, myspacing, linkedin-ing, updating my webpage and of course blogging.

On Twitter a lawyer complained that it is yet one more thing we need to do. I actually think it is a new way of doing an old thing. I just spoke to a potential client this morning who told me that she does everything on the internet. By the way, that is where she found me and, even though she couldn't remember which ones, she found me on many different sites. That is the point. People are not walking through the yellow pages anymore. This new technology is working really well.

Of course, I have had to fill everything with a disclaimer, but that is only because the technology approach tends to be a little more interactive, and that is actually really good for lawyers. I am really embracing this technology, and would love to hear from others about what they are doing.

Family Law dynamics

Family law - and why blog? A family law case is often a very emotional and frustrating situation. Obviously, things are not going well, which is why you have consulted with a lawyer. Furthermore, the legal rules and the way families function often don't mesh well. But it is the best system we currently have to resolve familial disputes, and it is an area of law that is constantly evolving to improve the ability to resolve them amicably rather than in a courtroom. However, it takes more than a little hand holding to get through some of these cases. With that in mind, my thinking is that I should blog so that I can pass on resources or ideas that might help. As usual, this is not legal advice and you should seek the direct advice of an attorney for a particular situation.

Since issues with children seem to be the most difficult, I wanted to mention that I recommend Vicki Lansky's book:DIVORCE BOOK FOR PARENTS:Helping Your Children Cope with Divorce and its Aftermath. More info can be found at her web site, which is: http://www.practicalparenting.com/divorce.html. If anyone else has a book that they have enjoyed or which they think can be helpful, let me know at pamela.makowski@gmail.com. Books are always good, because they don't involve any technical stuff, can be put down at a moment's notice, can be highlighted and dog-eared, and can be covered so no one knows what you are up to!